Department of Justice Announces Clemency Initiative

Remarks as Prepared for Delivery by Deputy Attorney General James M. Cole at the Press Conference Announcing the Clemency Initiative

Washington, D.C. ~ Wednesday, April 23, 2014

Good morning and thank you all for being here. I am pleased to announce a Department of Justice initiative to encourage qualified federal inmates to petition to have their sentences commuted, or reduced, by the President of the United States.

Last year, the Attorney General launched a new “Smart on Crime” initiative. Smart on Crime was conceived with an eye toward addressing the crises caused by a vastly overcrowded prison population and with a goal of redirecting some of the dollars we spend on prisons to prosecutors and law enforcement agents working to keep our streets safer. It is designed to strengthen the criminal justice system, promote public safety, and deliver on the promise of equal justice under law.

In 2010, President Obama signed the Fair Sentencing Act, which reduced unfair disparities in sentences for offenses involving crack cocaine. But the Fair Sentencing Act did not apply to those who were sentenced before its passage. And now there are many people in federal prison who were sentenced under the old regime – and who, as a result, will have to spend far more time in prison than they would if sentenced today for exactly the same crime. The fundamental American concept, equal justice under law, requires that our laws be enforced fairly – and not just going forward, but it is equally important that we extend this fairness to those who are already serving prison sentences for their crimes.

Last December, President Obama took steps toward addressing this situation by granting commutations to eight men and women who had each served more than 15 years in prison for crack cocaine offenses. For two of these individuals, it was the first conviction they’d ever received – yet, due to mandatory guidelines that were considered severe at the time, and are out of date today – they and four others had received life sentences. Since that time, the President has indicated that he wants to be able to consider additional, similar applications for commutation of sentence, to restore a degree of fairness and proportionality for deserving individuals. The Justice Department is committed to responding to the President’s directive by finding additional candidates who are similarly situated to those granted clemency last year, and recommending qualified applicants for reduced sentences.

We are launching this clemency initiative in order to quickly and effectively identify appropriate candidates, candidates who have a clean prison record, do not present a threat to public safety, and were sentenced under out-of-date laws that have since been changed, and are no longer seen as appropriate. While those sentenced prior to the Fair Sentencing Act may be the most obvious candidates, this initiative is not limited to crack offenders. Rather, the initiative is open to candidates who meet six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.

Identifying worthy candidates within our large prison population will be no easy feat. A good number of inmates will not meet the six criteria. But we are dedicating significant time and resources to ensure that all potentially eligible petitions are reviewed and then processed quickly to ensure timely justice.

First, we have put in place an extensive screening mechanism. Next week, the Bureau of Prisons is notifying all federal inmates of our initiative and providing them with these six criteria. If an inmate believes he or she fits these six criteria, the Bureau of Prisons will provide them with an electronic survey to fill out that will allow Department lawyers to efficiently screen whether the petition merits further consideration.

Second, I am pleased to announce that all inmates who appear to meet these six criteria will be offered the assistance of an experienced pro bono attorney in preparing his or her application for clemency. In January, I gave a speech to the New York State Bar Association in which I called upon private attorneys to volunteer to assist potential candidates in assembling commutation petitions – ones which provide a focused presentation of the information the Department and the President will consider – in order to meaningfully evaluate whether a petitioner qualifies under this initiative. Since that time, dedicated and experienced criminal defense and nonprofit lawyers have responded to that call. These numerous groups and individual attorneys, who are calling themselves Clemency Project 2014, will be working with inmates who appear to meet the six criteria and request the assistance of a lawyer. I am very grateful for the work of these volunteers and am confident that their commitment and expertise will result in high-quality petitions that the Department of Justice will be able to process on a more efficient basis.

Third, the Department of Justice is detailing lawyers to the Pardon Attorney’s Office on a temporary basis to review applications for commutation submitted under this initiative. These attorneys – importantly, to include those with experience as federal prosecutors – will provide the rigorous scrutiny that all clemency applications must undergo while providing the additional eyes necessary to review the numerous additional petitions that are invariably likely to be submitted. In addition, we are taking the unusual step of working with the Federal Public Defender Service to try to get some of their attorneys detailed to the Pardon Attorney’s Office to support this initiative. I will be personally involved in ensuring the Pardon Attorney’s office has the resources needed to make timely and effective recommendations to the President.

Fourth, once we have made a preliminary determination that a petition is worthy of serious consideration, we will consult with both the United States Attorney’s Office and the trial judge that handled the case to get their views on the propriety of granting the application.

Finally, I want to thank Ron Rodgers for his service as the United States Pardon Attorney. Over the past several years, Ron has performed admirably in what is a very tough job. He has demonstrated dedication and integrity in his work on pardons and commutations. In the tradition of Senior Executive Service attorneys in the Department, Ron has asked me to allow him to move on to another assignment within the Department. I told him I would do that, but only after he helped with the transition to new leadership in the Pardon Attorney’s Office. In that vein, I am pleased to announce that Deborah Leff will be coming in to lead the Pardon Attorney’s Office. Debby has committed her career to the very basis of this initiative – achieving equal justice under law. As Acting Senior Counselor for Access to Justice, her fundamental mission has been to help the justice system deliver outcomes that are fair and accessible to all. She has worked to increase access to legal counsel and legal assistance for those who are unable to afford lawyers. And, she has also been instrumental in the standing up of Clemency Project 2014. Importantly, she is known in both the Department and the legal community as a dedicated advocate and public servant. I am confident that she will do a wonderful job providing recommendations to me and the President on this initiative and on the clemency process going forward.

Let there be no mistake, this clemency initiative should not be understood to minimize the seriousness of our federal criminal law and is designed, first and foremost, with public safety in mind. Even low-level offenders cause harm to people through their criminal actions, and many need to be incarcerated. Our prosecutors and law enforcement agents worked diligently and honorably to collect evidence and charge these defendants, and then fairly and effectively obtained their convictions. These defendants were properly held accountable for their criminal conduct. However, some of them, simply because of the operation of sentencing laws on the books at the time, received substantial sentences that are disproportionate to what they would receive today. Even the sentencing judges in many of these cases expressed regret at the time at having to impose such harsh sentences. And several United States Attorneys are proactively providing names of individuals they believe should be part of this initiative. Correcting these sentences is simply a matter of fairness that is fundamental to our principles at the Department, and is a commitment that all Department of Justice employees stand behind.

In the same vein, it is important to remember that commutations are not pardons. They are not exonerations. They are not an expression of forgiveness. Rather, as the President said, they are an “important step toward restoring fundamental ideals of justice and fairness.” He noted that “many of [these individuals] would have already served their time and paid their debt to society” had they been sentenced under current law. For our criminal justice system to be effective, it needs to not only be fair; but it also must be perceived as being fair. These older, stringent punishments that are out of line with sentences imposed under today’s laws erode people’ s confidence in our criminal justice system. I am confident that this initiative will go far to promote the most fundamental of American ideals – equal justice under law.